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"People are not coming in and saying `Wait a minute, I was wrongfully foreclosed because I'm not in default,'" said Graham.

In the Bevilacqua case, the borrower defaulted within a year of taking out the mortgage and can't be found. The court wouldn't hand down its Ibanez decision for another five years after Bevilacqua bought the house, so there was no way he could have known a future court would find fault with the way the title was transferred. The question of his ownership only emerged after the buyer of one of his condos hired a lawyer to look for potential problems after Ibanez.

The court did overrule a lower court's decision that Bevilacqua had no claim on the property. Under Massachusetts law, when he gave the bank money for the property, the bank in effect transferred the mortgage to him along with the title. So while the title may be invalid, he can get it back by foreclosing again on the absent former owner. But that is a highly uncertain process that exposes him to the risk of losing his investment to an outside bidder, Graham said, and the high court gave no assurance it will work.

To avoid these questions, Bevilacqua's lawyer tried to use an old Massachusetts process of obtaining title by forcing the former owner to come to court to defend his claim. The court said Bevilacqua couldn't do that because he didn't have standing.

"We were hoping the court would at least offer some guidance as to what an owner in this circumstance can do," Graham said.

The bigger question is why the state's high court has left so much uncertainty surrounding what should be a fairly simple process. When a borrower defaults there is not much question about who will eventually obtain title to the property. Courts around the country appear to be seizing upon technical problems related to how the paperwork of foreclosure is processed without acknowledging that these rarely, if ever, generate a legal dispute among the actual lenders.

"The practical reality is – I have not seen more than one court case where servicers fight over who has the right to foreclose," said Rainen. “The courts have taken an issue which we perceived as being between two lenders, and perceived it as a problem between borrower and lender."

One practical effect will be felt in Massachusetts immediately. Foreclosure buyers had better be ready to pay cash -- and they will probably discount their offers further for the uncertainty there's a snafu somewhere hiding in the title.

"It is highly unlikely a title insurance company that is not already on the hook is going to issue a policy on that property," Graham said.